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Christopher v State [2008] FJHC 199; HAA48.2008 (3 September 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 48 of 2008

No. 33 of 2008

BETWEEN:

JOSEPH CHRISTOPHER
1st Appellant

VINAY V. PRASAD
2nd Appellant

AND:

STATE
Respondent

Hearing: 3rd September 2008
Ruling: 3rd September 2008

Counsel: 1st Appellant in person
2nd Appellant in person
Ms. V. Lidise for the Respondent

BAIL PENDING APPEAL RULING

Both Appellants have appealed against their convictions and sentences in the Nadi Magistrates Court for the offence of robbery with violence.

The 1st Appellant was sentenced to 10 years imprisonment on the 25th of January 2008. The 2nd Appellant received the same sentence on the 6th of February 2008. Their appeals have been adjourned to give them time to get legal representation. The 1st Appellant has applied for legal aid. The 2nd Appellant has taken no steps to engage counsel saying that he will do so when he is granted bail. They both apply for bail pending appeal.

The State opposes bail saying that they have only served 7 and 8 months respectively of their sentences, that there are no merits in the appeal and that there are no exceptional circumstances to justify the grant of bail.

The 1st Appellant said that he was prejudiced by lack of representation in the Magistrates Court, that the presiding magistrate failed to give him time to ensure presence of his counsel, and that he remained silent throughout the trial because he did not understand the proceedings. He further said that he magistrate had asked for a bribe of $4,000 in order to acquit him but that he could not pay because he was in custody.

The 2nd Appellant said that he had not committed the offence and needed bail to engage counsel. When I asked him why he had made no arrangements for legal aid from prison he did not reply.

Bail pending appeal is not a right. Indeed, the right to bail is rebutted once the accused person is convicted. Bail pending appeal should only be granted where a substantial term of the imprisonment will have been served when the appeal is heard, where the appeal is clearly meritorious, or where there are any other exceptional circumstances.

The Appellants have failed to show me any of these grounds. They are serving 10 year terms of imprisonment and have served less than one year of them. There are no obviously meritorious grounds of appeal, and the 1st Appellant had ample time to instruct counsel during the trial and between hearing dates. Indeed at the last call of this appeal, we still await counsel’s appointment through legal aid.

The 1st Appellant submitted that a co-accused Nazrin Nisha was granted bail. However, she was convicted of a lesser offence, and the appeal to the High Court (which succeeded) was not her appeal. It was the State’s. The cases are not comparable to these Appellants’ cases.

For these reasons bail is refused for both Appellants.

Nazhat Shameem
Judge

At Lautoka
3rd September 2008.